It's legal to drink and drive in Oregon.
And, there is no law against using a controlled substance and driving. There is no law that prohibits driving while feeling the effects of alcohol or a controlled substance.
However, there is a law against driving while a person is “under the influence” of alcohol, an inhalant or a controlled substance.
The "typical" DUI case is no longer limited to "drunk driving." The police are arresting more drivers for operating a vehicle while allegedly "under the influence" of any number of prescription medications. (A person is presumed to be “under the influence of intoxicating liquor” if a chemical test shows a blood alcohol concentration (BAC) of .08 percent or higher.)
However, police often arrest drivers who have a BAC that is lower – sometimes much lower – than that. The police and the prosecutor may try to convict a driver with less than .08 BAC by alleging that the person was “impaired,” or otherwise was “adversely affected to a noticeable or perceptible degree” by “intoxicating liquor,” an inhalant, a controlled substance, or any combination of these substances.
Attorneys from throughout the United States examined the effects of DUI on professional licenses at the 2016 Summer Session of the National College for DUI Defense, convening at Harvard Law School in Cambridge, Massachusetts.
A surprising number of occupational credentials are affected by laws and regulations that deny professional and business licenses to persons with a conviction (or diversion) for DUI.
The list is extensive, and includes the following job titles: commercial driver, lawyer, pilot, medical professional, dentist, pharmacist, bail bond agent, accountant, SEC (Series 7, etc.), real estate broker, pharmaceutical sales, military, teacher, daycare provider, USCG captain, person with government security clearance, liquor licensee, bus driver, conductor, taxi driver, auto sales, foster care provider, and marijuana grower.
Often, fairness is all a person charged with DUI needs to prevail.
Not every case needs to be resolved in a trial. Some cases should be dismissed. Some can be resolved in a plea.
Unfortunately, in Oregon, a DUI case cannot be "pled down" to a lesser charge. While our neighboring states frequently offer a lesser charge of "wet reckless," as an alternative to a DUI, this option isn't available in Oregon. And, in Oregon, diversion often is an unattractive option for many because it requires a person charged with a DUI to admit that he or she committed a crime. After a person enters diversion, the record of the arrest and the guilty plea to the DUI can never be expunged. For many professionals, including commercial drivers, pilots, military personnel, and others, a record of a DUI diversion is not an acceptable option. For these reasons and others, there are many who experience the unfairness of having a permanent, criminal record for a first-offense DUI.
Sometimes, the only way to make the system work fairly is to take a case to trial.
Juries are bound by the law to presume a defendant's innocence. At trial, a defendant has the right to confront witnesses and the force the government to prove its case beyond a reasonable doubt. Evidence can be excluded if it was obtained by police improperly or unlawfully. These are the protections guaranteed by the United States Constitution.
“Cannabis and cars” was the topic at the January 2016 conference of the National College for DUI Defense in Los Angeles, convening at Marina Del Rey. The focus of the seminar was to educate DUI defense attorneys who represent drivers accused of impaired driving in cases involving cannabis and other drugs.
George Bianchi of Seattle, former dean and now a fellow of NCDD, presented his paper on cannabis and cars. The work he authored is replete with a formidable library of recent scientific research and case law. Scientific and legal issues that are specific to the absorption and elimination of delta-9 tetrahydrocannabinol from the bloodstream are being raised in courtrooms throughout the United States.
The relationships of THC, impairment and driving ability are critical where the state brings criminal DUI charges. Bianchi stated, however, “There is no true understanding and agreement about the absorption and elimination of THC.”
And, although the main isomer and psychoactive constituent of marijuana remain active for a short time, studies have confirmed that metabolites of THC that have no psychoactive effect. However, these metabolites may remain in the system for 30 days or more. The presence of "11-nor-9 carboxy" delta-9 tetrahydrocannabinol may be offered to prove that a subject ingested THC at some time in the last month -- but it doesn't prove (or tend to prove) that a person is presently impaired.
In 2014, Bianchi asked for help in his THC research from Ted Vosk. Bianchi asked Vosk to review 23 articles that related marijuana impairment to specific THC levels.
Vosk completed the review and of the 23 articles found only four that seemed to advance some sort of per se level of impairment for THC. (Two other articles promoted zero tolerance.)
Bianchi wrote about tests in 2014 involving drivers who had consumed both alcohol and marijuana. Subjects gave blood and saliva samples as they took driving tests on simulators. Scientists concluded that they had observed something they called “lateral position lane weave.” They got excited about factors such as "steering angle," "lane departures" and "minimum and maximum lateral acceleration" with their "driving simulator."
The remainder of the study's conclusions set forth quantitative data about possible relationships between active, post-dose effects of THC with “minor lateral decrements” observed, which, one writer stated, “may be dangerous in narrow or winding roads.”
The standards for marijuana and driving currently are all over the place, depending on the state (meaning, the jurisdiction) you're in. But, in the meantime, police are being trained to continue to use the old, standard alcohol tests in looking for “clues” that a driver is “impaired” by marijuana.
In every presentation at this conference, it became clear that police and district attorneys nationally are staking out their positions on when, and at what levels, THC impairs driving ability.
In the meantime, in states where medical and recreational marijuana use is legal, marijuana users are getting DUIs.
And, in all states, drivers are getting DUIs where they have given a breathestimate of their blood alcohol of less than .08 percent but provide some evidence that they also had used marijuana.
NCDD has over 2,000 members nationwide.
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